WASHINGTON – Predictably and sensibly, a three-judge panel of the nation's second-most important court, the U.S. Court of Appeals for the D.C. Circuit, recently dismissed, unanimously, a lawsuit brought by a Yemeni man, two of whose relatives were collateral fatalities in a 2012 U.S. drone attack that killed three terrorists. The suit asked the court to declare the attacks illegal under several U.S. statutes.
The court, however, invoked the "political question" doctrine: Some politically charged and technical matters are not "justiciable" because courts are inappropriate forums for answering them. They include the wisdom of military actions. What was sensible but not predictable was that Judge Janice Rogers Brown, in addition to writing the opinion for the court, added a blistering opinion in which she upbraided the other branches for dereliction of duties regarding unfettered presidential warmaking, particularly with precision-strike weapons.
"There is pitifully little oversight within the executive. ... [C]ongressional oversight is a joke – and a bad one at that. ... The spread of drones cannot be stopped, but the U.S. can still influence how they are used in the global community – including, someday, seeking recourse should our enemies turn these powerful weapons 180 degrees to target our homeland. The executive and Congress must establish a clear policy for drone strikes and precise avenues for accountability." Brown asked: If judges will not check "this outsized [executive] power, then who will?"
Unfortunately, in this, as in so many other areas, Congress is in perpetual flight from responsibility. It should begin by revisiting the 2001 Authorization for Use of Military Force, which was enacted while the World Trade Center and Pentagon still smoldered.
The AUMF authorized the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons." As Rosa Brooks, a former Pentagon official and now Georgetown law professor, crisply notes, five and three of those words especially matter.
In her simultaneously witty and disturbing book "How Everything Became War and the Military Became Everything" (2016), she notes that the AUMF does not authorize force "against anyone, anywhere, anytime" but only against those who "planned, authorized, committed or aided" 9/11. And it authorizes force for a specific purpose – to "prevent any future attacks" against this nation by such entities, "not to prevent all future bad acts committed by anyone, anywhere."
Last October, believed to be for the first time ever, a U.S. Navy vessel fired SM2 interceptor missiles to defend itself against a missile attack. The attack came from Yemen, where U.S. forces are involved – they have made more than 80 airstrikes this year, and 150 others since 2012 – in that country's civil war. Most, but not all, targeting Al-Qaeda in the Arabian Peninsula.
In June, a U.S. F/A-18E shot down a Syrian government fighter aircraft that was threatening rebel forces attempting to overthrow the Syrian regime. In May, U.S. forces repeatedly attacked government forces, or the government's proxy forces, in Syria. U.S. forces are occupying Syrian territory. Hundreds of marines are manning fire bases in northern Syria. This intervention resembles a slow-motion invasion.
Now, some, most or all current U.S. military activities might be sensible. Few, however, are clearly authorized.
Sens. Jeff Flake, R-Ariz., and Tim Kaine, D-Va., have introduced legislation to authorize the use of force against al-Qaeda, the Taliban and the Islamic State for five years. It would create a process by which presidents can designate other radical Islamic groups as "associated forces" and Congress can reject such an expansion of force.
Last month, the House Appropriations Committee voted – by voice, perhaps unanimously – to include in a defense measure a provision repealing the 16-year-old AUMF, for the purpose of forcing the writing of one responsive to 2017 realities. Speaker Paul Ryan opposed using an appropriations bill for this purpose (although nowadays the House appropriations process is rarely used for its intended purpose – timely passage of appropriations bills). But Rep. Tom Cole, an eight-term Oklahoma Republican on the committee, said, "I don't know any other way to get [the congressional leadership's and the administration's] attention because we've been talking about it for years."
Congress is permanently in "Annie" mode. It will deal with its war responsibilities, like its myriad other forfeited powers, tomorrow, which is always a day away.